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In Re Nitz





APPEAL from the Circuit Court of Rock Island County; the Hon. CONWAY L. SPANTON, Judge, presiding.


The Illinois Department of Children and Family Services (hereinafter the Department) commenced this action by filing a supplemental petition in the circuit court of Rock Island County under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.) requesting that Douglas Nitz, Jr., be found a neglected minor and that his parents, Tammy Nitz and Douglas Nitz, Sr., be found unfit under the provisions of the adoption act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 et seq.). After an adjudicatory hearing, the trial court found that the appellant, Tammy Nitz, had neglected her minor child in a repeated, continuous, and substantial manner, and that both parents had failed to maintain a reasonable degree of interest, concern, or responsibility for his welfare. Accordingly, the court terminated parental rights and granted temporary custody and guardianship of the minor child to the Department.

On appeal, respondent Tammy Nitz contends (1) that the trial court's finding of neglect was against the manifest weight of the evidence; (2) that the trial court's finding of unfitness was not proven by clear and convincing evidence; and (3) that the trial court erred in admitting into evidence testimony regarding events which occurred prior to a previous adjudicatory hearing. A detailed recitation of the facts is necessary to our consideration of these contentions.

The history of this case is somewhat long and involved. Douglas Nitz, Jr., was born April 22, 1975, and resided with his mother, Tammy Nitz, until December 31, 1975. On January 12, 1976, a petition was filed pursuant to the provisions of the Juvenile Court Act (hereinafter the Act) which requested that temporary custody of Douglas be granted to the Department and the trial court entered an order granting that petition. An adjudicatory hearing was held and evidence taken on February 5, 1976. At this time Douglas was approximately 10 months old and evidence was presented that he was suffering from medical problems, had been twice hospitalized, and was failing to gain weight. Evidence that Mrs. Nitz had an attitude of indifference in regard to her child's problems and that she was uncooperative with representatives of the Department and the Rock Island County Child Abuse Team in regard to Douglas' health problems was also presented. At the conclusion of the hearing, the trial court indicated the evidence was insufficient to sustain a finding of neglect and that it desired to hear medical testimony regarding the health problems and their causes. A final hearing was had on October 27, 1976, and, after considering the requested medical testimony, the court entered a finding of neglect. A dispositional hearing was held on January 4, 1977, and the Department was appointed guardian with directions to place Douglas in his mother's home under supervision at that time as Mrs. Nitz would obtain suitable housing.

An appeal of the trial court's decision was taken to this court and on October 20, 1977, we reversed the trial court, holding the court's adjudication of neglect was not supported by sufficient evidence. In re Nitz (1977), 54 Ill. App.3d 851, 368 N.E.2d 1111.

Two days prior to our decision, Douglas was hospitalized for pneumonia and Dr. Earl Stockdale, his attending pediatrician, filed a suspected neglect report with the Department on October 24, 1977. The bases for that report were that Mrs. Nitz could not be found when Douglas was to be released from the hospital, that he had been left at home for extended periods of time with a babysitter, and that his condition indicated his nutrition was deficient. On November 1, 1977, a supplemental petition was filed and an order entered granting temporary custody to the Department. An amended supplemental petition was filed December 15, 1977, and an adjudicatory hearing held on January 12, 1978, and continued to conclusion on February 22, 1978. The trial court, indicating it regarded this as a new proceeding, found neglect and unfitness and on April 4, 1978, entered an order terminating all parental rights.

At the adjudicatory hearings of January 12, 1978, and February 22, 1978, the court heard evidence covering a period from July 1975 through February 1978. We here summarize and review only that testimony pertaining to events occurring after October 27, 1976, the date of the completion of the prior adjudicatory hearing.

Neva Hamilton, a caseworker for the Department, visited Mrs. Nitz on February 4, 1977, and found that, except for a single room, her apartment was cold, and that there were dog feces present. Unable to find the respondent at home on five occasions between March 16, 1977, and March 30, 1977, Ms. Hamilton finally located her at a laundromat on April 1, 1977. She then learned that Mrs. Nitz had not taken Douglas to the doctor upon regaining custody, a condition of his return in February 1977. On May 27, 1977, Ms. Hamilton noted Douglas did not seem to be growing. There were rats in the hallway of the building and within the respondent's apartment, there were dirty dishes in the sink and living room, half-eaten food, and a sticky and dirty floor. In June of 1977, Douglas was observed drinking soda and eating potato chips he found lying about in the living room.

A student intern with the Department, Jean Simpson, testified that she visited respondent's home on seven occasions in April and May of 1977. On May 4, 1977, she observed Mrs. Nitz give Douglas a glass of milk which looked "lumpy." When Ms. Simpson checked the carton, she found an April 14, 1977 expiration date. That was the only occasion she ever saw Douglas having milk but did note his having "Pepsi or chips" on several occasions. Ms. Simpson testified that garbage was stacked in one corner of the kitchen and that dirty dishes were present.

Mary Nitz, the child's paternal grandmother, testified that she observed Douglas on October 16, 1977. At that time he was very ill and was vomiting. She stated that Douglas' bones were sticking out and that "he was like a piece of skin over a skeleton." Mrs. Nitz also voiced concern over her daughter-in-law's habit of leaving Douglas "with about anyone that would take care of him."

The pediatrician who filed the suspected neglect report, Dr. Earl Stockdale, testified concerning a chart he had prepared, plotting Douglas' weight gain against a standard weight chart compiled by Ross Laboratories. On November 24, 1976, the 17-month-old child weighed 18 lbs., 7 ozs. On January 12, 1978, the 30-month-old child weighed 20 lbs., 13 ozs., representing a weight gain only of 2 lbs., 6 ozs. in almost 14 months. The chart revealed the 50th percentile normative weights to be approximately 25 and 30 pounds respectively and Dr. Stockdale testified Douglas' weights fell below the third percentile. He explained that Douglas had the ability to gain weight and that he felt there was a relationship between the child's nutrition and his illnesses, in addition to the retardation in his physical growth. He also noted a problem in Douglas' eating habits as he liked to "eat on the run" and would not sit and feed himself.

Debbie Freiburg, a registered nurse specializing in pediatric nursing at Franciscan Hospital, described Douglas' condition at the time of his hospital admission as "pale, tired, listless, and extremely dirty." Nurse Freiburg stated the child was so dirty an admission bath, rarely required, was necessary, and she noted sores and a rash on his back, abdomen, and buttocks. When she questioned the respondent, Mrs. Nitz said she knew nothing about the rash and that the sores were from sitting on a splintered porch. Nurse Freiburg questioned this as the weather was cold and noted the child was wearing only a diaper.

One of respondent's landlords, Darryl Carr, testified that on the three occasions he observed Douglas, he was never even wearing a diaper. The apartment he rented the respondent had been redecorated before she moved in during July of 1977. After her eviction in November of 1977 he was forced to repaint the living room and replace the carpeting in the bedroom as it had been ruined by dog urine and feces. No rent had ever been paid.

Lisa Adams, a caseworker with the Department, was working with Mrs. Nitz in October of 1977 to effect Douglas' return to her after his hospitalization. Ms. Adams testified that she thereafter was forced to file the neglect petition as respondent did not come to her office, after assurances of her willingness and ability to do so, to devise a case ...

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